Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Court Upholds Curb on 'Fetus Dolls' at School

A New Mexico school district did not violate the rights of students when it barred them from distributing small "fetus dolls" accompanied by an anti-abortion message, a federal appeals court ruled on Monday.

School administrators in the Roswell, N.M., district could have reasonably forecast that the two-inch rubber dolls would cause a disruption in two high schools, and a distribution of some of the dolls in fact did disrupt school, the court held.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled unanimously that restrictions on the dolls and policies requiring students to obtain approval before distributing non-school-sponsored materials did not violate the First Amendment rights of five students.

The students are members of a religious youth group called Relentless, which is affiliated with a Christian congregation in Roswell called Church on the Move. Relentless members frequently shared their religious beliefs and anti-abortion views with fellow students at school, court papers say, with no interference from administrators. The group had also distributed food and other items, such as "affirmation rocks," with religious messages to students or faculty members, usually with administrators invoking a preapproval policy.

On Jan. 29, 2010, Relentless members planned to distribute some 2,500 rubber fetus dolls at Roswell High School and Goddard High School. The dolls were meant to suggest the actual size of a fetus at 12 weeks of gestation, which the group's card described as a "12-week-old baby" and contained other religious messages.

At Goddard High, court documents say, some 300 dolls were given to students before administrators shut down the distribution. Meanwhile, some students tore the small heads off the dolls and bounced them around classrooms like rubber balls. Some students used the dolls to plug toilets, while a few of the dolls were covered in hand sanitizer and lighted on fire. And other students found lewd uses for the rubber dolls.

Teachers complained of the substantial disruption caused by the items themselves, while at least one class was disrupted, with a scheduled test requiring postponement, because students became embroiled in name-calling over abortion, court papers say.

Meanwhile, a security officer at Roswell High described the effects of the doll distribution at the school as a "disaster."

After the students were barred from further distribution of the dolls, they sued alleging violations of their First Amendment free speech and free exercise of religion rights. A federal district court granted summary judgment to the school district.

The fetus doll distribution "conveyed a political and religious message and would likely merit First Amendment protection outside the school context," the court said. "Inside the school walls, however, we must consider whether the expression was, or was reasonably forecast to be, disruptive."

Based on the disruption described above, the answer was yes, the court said.

"The sheer number of items ... created strong potential for substantial disruption," the court said. "Furthermore, these fetus dolls were made of rubber—a material that could easily be, and was, pulled apart, bounced against walls, and stuck to ceilings. The dolls' small size made them tempting projectiles and toilet-clogging devices. This scenario carries more potential for disruption than the passive, silent act of wearing a T-shirt or a black armband. And that potential quickly came to fruition."

The fact that the disruption was caused not by the students who distributed the dolls but by others might carry weight outside of the school context, but in school "the government has a compelling interest in protecting the educational mission of the school and ensuring student safety," the court said.

The appeals court also rejected arguments aimed at the school district's preapproval policies for non-sponsored items and the religious students' free-exercise claim.

The court noted that only one of the five students who challenged the district's actions is still in school in Roswell, and that student graduates from high school in May. Because the students sought only injunctive relief and not damages on their claims, that would seem to make a U.S. Supreme Court appeal unlikely to survive mootness once the last plaintiff graduates.

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